Fisher v Phillips HC Christchurch CIV-2010-409-001985
[2011] NZHC 1593
•8 August 2011
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2010-409-001985
BETWEEN AARON GEORGE FISHER AND AMY JOCELYN FISHER
Plaintiffs
ANDBAYDON JOHN PHILLIPS AND SARDINERO TRUSTEES LIMITED First Defendants
ANDBAYJAH DEVELOPMENTS LIMITED Second Defendant
Hearing: 19 July 2011
Appearances: D A Wood for Plaintiffs
P H B Hall QC for Defendants
Judgment: 8 August 2011
JUDGMENT OF WHATA J
This judgment was delivered by Justice Whata on
8 August 2011 at 4.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Alan Jones Law Partnership, 11D Wynyard Street, Devonport, Auckland 0624
Saunders & Co., PO Box 18, Christchurch
Copy to:
D A Wood, PO Box 1452, Shortland Street, Auckland 1140P H B Hall QC, PO Box 3750, Christchurch, 8140
FISHER V PHILLIPS AND SARDINERO TRUSTEES LIMITED HC CHCH CIV-2010-409-001985 8 August
2011
[1] This concerns an application to set aside an interim injunction. The interim injunction was on the following terms:
(a) The first defendants are to immediately cease any construction, excavation for construction, or any building of any nature on the property known as Lot 2 on Deposited Plan 393069, Identifier 372834 (“the site”).
(b)No further such construction work is to be undertaken under building consent 100457 or otherwise until further order of the Court.
(c) The defendants are to immediately cease any construction of a gate or other obstruction over the right-of-way created by easement
6528151.5 until further order of the Court.
[2] The orders are self-explanatory. The defendant was also given leave to set
aside or to apply to set aside these orders on three days’ notice.
[3] The further background to this is that the plaintiffs allege that the first defendants in the week of 23 August 2010 started intensely developing the Site in contravention of a restrictive covenant affecting the property. A full copy of the restrictive covenant is attached as Appendix A.
[4] The first named first defendant also commenced construction of a gate across
an access easement serving both his and the plaintiffs’ site.
[5] The particulars of the breach (at the time of the original application) are that in contravention of clause 1 of the restrictive covenant, the first named first defendant proposed to undertake two buildings on the site and in a manner that did not comply with the express and implied standards for buildings contemplated by the covenant.
[6] The first named first defendant (“BJP”) seeks to set aside the interim
injunction on the following bases:
(a) There were no breaches of the restrictive covenant or any breach was remediable;
(b)He wishes to proceed with the construction of a building on his property which is not in breach of the restrictive covenant.
(c) The right-of-way was not created for the benefit of the plaintiffs and the actions of the first named first defendant were not intended and did not interfere directly or indirectly with the property rights of the plaintiffs.
Jurisdiction
[7] BJP usefully sets out the relevant jurisdiction, namely that:[1]
[1] Refer High Court Rules - r 7.49(6)
7.49 Order may be varied or rescinded if shown to be wrong
...
(6) The Judge may, -
(a) if satisfied that the order or decision is wrong, vary or rescind the order or decision; or
(b) ...
[8] In submissions BJP elaborates on the grounds in support of setting aside. Counsel usefully sets out the alleged primary shortcomings of the building under
construction by the plaintiffs, namely:
A floor area of 70 square metres when the covenant required a
minimum area of 140 square metres.
Accommodation contrary to requirements of covenant and a “barn”
was likewise contrary;
[9] And as to the new October 2010 building consent:
“The (new) plans are for an agricultural barn which is totally inappropriate for a high quality subdivision”.
The (new) plans contain no reference to the minimum enclosed floor
area in contravention of the covenant.
The (new) plans have changes to terminology and new exterior
cladding plywood and timber baten is non-compliant.
[10] In response, BJP deposes that:
(a) The floor area of the dwelling/garage is 214 square metres, well in excess of the minimum requirement of 140 square metres.
(b)The plans comply because there is a linkage between the dwelling and garage and both are incorporated in the one structure.
(c) The plans have never referred to a “barn” and the garage cannot be so
described.
(d)The cladding either complies with the covenant or has otherwise been consented to by Bayjah Developments (the second defendant), or its nominee who are the sole arbiters of the aesthetic standards and whether or not to approve of departures by written permission pursuant to clause 2 of the restrictive covenant.
[11] He also says that the erection of the gates was a non-issue. The plaintiffs have never been prevented from using the right-of-way. The affected part of the access way services his property only and nowhere else. In any event BJP now undertakes not to construct a gate across the easement area.
[12] Finally, he says that the new plans have a building permit and meet any possible legal objection that the plaintiffs may have.
[13] Mr Hall QC for BJP also complains that the affidavit in support of the
plaintiffs’ claim contains various inaccurate statements including:
(a) Exaggerations about the interests of the plaintiffs and neighbours;
(b)Contrary to the evidence given by the plaintiffs, they were aware of the proposed amendments but failed to advise the Court of them.
(c) Exaggerated description of Mr Phillips Senior as a well known developer in North Canterbury.
(d) Misrepresentations as to Mr Phillips’ knowledge of the issue of
building consents.
(e) Excessively pejorative language, including descriptions of Mr Phillips as lying, untruthful and arrogant.
[14] Overall BJP maintains that there is an insufficient basis to maintain a perpetual or permanent injunction and on that basis it is not appropriate to continue interim injunction. He want to build a dwelling for his personal use.
The plaintiffs’ case
[15] The plaintiffs maintain that the jurisdiction to vary or rescind an order is limited to a finding that the order or decision was wrong.
[16] The plaintiffs contend that the affidavit evidence of BJP supports the basic proposition that the original plans were non-compliant and they had to be changed. The proposed activity therefore was unlawful. The plaintiffs say that the new proposal does not represent a significant change at all – a large barn like structure with inappropriate materials is still proposed, with the dwelling as and add on to achieve bare compliance.
[17] The plaintiffs also say that BJP’s criticisms are, in short, nonsense.
[18] Overall, it is the plaintiffs’ position that the proposed construction is an egregious breach of the terms and underlying purpose of the covenant to secure a high quality rural residential subdivision. They say this dispute must go to a substantive proceeding rather than be dealt with on this halfway house basis. If development is allowed to proceed it will have a significant and immediate effect on the plaintiffs’ aesthetic appreciation of their surrounds, directly in breach of the pith and substance of the covenant.
Analysis
[19] The original application came to the Court on a without notice basis. Orders were granted on that basis with leave granted to BJP to seek to have the order set aside. I therefore propose to approach the application for setting aside applying the orthodox principles relating to interim injunctions and on that basis I need to be satisfied that:
(a) There is a serious issue to be tried; and
(b) The balance of convenience and overall justice favour grant.
[20] I also consider it appropriate to preface this analysis by assessing whether an injunction is necessary.
Necessity
[21] Construction of the proposed building would inevitably change the status quo. It is capable of rectification, but not without adversely affecting the plaintiffs in terms of their aesthetic appreciation of their environs. Accordingly, I proceed on the basis that the injunction is necessary to protect the interests of the plaintiffs.
Serious issue
[22] It appears that BJP originally intended to construct a development that was, according to the plaintiffs, non-compliant with the restrictive covenant. BJP has
substantially modified that development to address the concerns raised by the plaintiffs. Nevertheless the plaintiffs maintain that it remains non-compliant.
[23] As I have said, the nub of the plaintiffs’ case is that the covenant restricts development to a type and scale consistent with a high quality rural subdivision. The plaintiffs rely in particular on the requirements that:
(a) Only a new dwelling with a minimum closed in floor area of no less than 140 square metres (including garaging) may be developed on the site (refer clause 1); and
(b)Only certain specified materials may be used for the purposes of any building without first obtaining the written permission of the vendor (Bayjah Developments Ltd) or their nominee (refer clauses 2 and 3).
[24] These requirements combine with a succession of requirements that maintain a certain level of visual amenity, and are said to prevent the type of development now contemplated by the first defendant.
[25] I accept that on its face the covenant does contemplate dwellings of a specific scale and of a specific quality. I consider that there is a seriously arguable case that even the amended proposal may be non-compliant with the restrictive covenant. In particular, it is arguable that the current proposal can be characterised as a large barn-like structure with an undersized dwelling attached. This would seem to be discordant with the requirement that any dwelling be over the 140 square metre platform in size. Whether a covered walkway between the dwelling and the barn- like structure overcomes the minimum floor requirement is something that needs to be debated at the hearing, probably assisted by independent expert evidence as to whether the barn-like structure can be properly characterised as a dwelling or part of a dwelling.
[26] I also consider that it is seriously arguable that the proposal to cover the larger structure in corrugated iron offends the covenant in principle. Clause 2 is quite clear that the materials used should be brick, stone, concrete block, plastered
textured finish or timber weatherboards. While there is an opportunity to obtain written permission for other materials, arguably that should be read within the context of the purpose and thrust of the covenant. It appears to contemplate that written permission will be given to similar quality materials only. Corrugated iron is not in that category. I am fortified in that view given that clause 4 specifically prohibits the use of corrugated metal fences. One can anticipate that purchasers of these sites would be aghast at the prospect of a building of the proposed scale in corrugated iron.
[27] I acknowledge that the BJP has offered to use board and batten rather than corrugated iron. That would seem to align more properly with the requirements of clause 2.
[28] There remains, however, the issue of whether or not the combined structures constitute a new dwelling with a minimum closed in floor area of no less than 140 square metres. This is seriously arguable and still needs to be ventilated.
Balance of convenience
[29] I consider that the following factors are critical to the question of the balance of convenience and overall justice:
(a) I am advised that the injunction will prevent Mr Phillips from building a dwelling for his personal use;
(b)Mr Phillips has offered to build the structures in board and batten (as opposed to corrugated iron) – though it was slightly unclear as to whether or not the larger structure will be in board and batten or only that part facing the plaintiffs’ property;
(c) Mr Phillips accepts that if he is wrong and the building is not compliant, he will have to pull it down.
(d)On the other side of the equation, the plaintiffs have, fairly in my view, highlighted the fact that the new structure will be visible to them from their current residence and that it will adversely affect their aesthetic appreciation of their environment. I do note however that there is nothing stopping Mr Phillips from building a timber weatherboard house of the dimensions of the larger structure at the same location. I am assuming for that purpose that whatever consenting requirements are needed for such a structure will be obtained. Provided that the materials used conform to the general quality anticipated by the covenant, it is difficult to see how the plaintiffs are more adversely affected by a dwelling of that scale as opposed to a barn of that scale.
[30] In the circumstances, the permitted scale of effects tips the balance in favour of the plaintiffs being able to build their dwelling, subject to an assurance as to quality and ultimate remedy. I would have preferred to proceed on the basis that they develop the smaller “dwelling component” only in the interim. But apparently the parties were of the view that this would be impermissible given that it is agreed that the dwelling is currently too small to comply with clause 1.
[31] Accordingly, on that basis I will amend the interim injunction so that the first defendant may construct the proposed structure as set out in the new plans attached to the affidavit of Baydon John Phillips, dated 5 April 2011, but subject to the following conditions:
(a) The exterior materials used for the dwelling and garaging (including the larger structure), must be those specified in clause 2, and or in board and batten; and
(b)Mr Phillips provides an undertaking to this Court within seven days that in the event that the structure is found to be non-compliant with the covenant, he will remove it as soon as practicably possible, but no later than three months within any final judgment on that aspect of the
matter, unless he obtains an order of this Court enabling him to retain the structure.
[32] I am also prepared to amend the interim injunction on the lesser and alternative basis that, with the plaintiffs’ consent, Mr Phillips may build the smaller dwelling with the materials set out at [31(a)] and in the interim period pending the substantive hearing. Any such consent if given by the plaintiffs would be without prejudice to any final remedy that might be sought by them.
[33] The parties are also to provide a joint memorandum dealing with all relevant case management matters within 14 days for the purpose of securing a trial as soon as is practicable. Failing to comply with directions may result in further amendments to the injunction.
Costs
[34] Costs are reserved.
Whata J
APPENDIX A
RESTRICTIVE COVENANT
Schedule B
The registered proprietor of the Servient Tenement described in Schedule 1 to this Instrument covenants with the registered proprietor of the Dominant Tenement described in this Instrument as follows:-
1.Not erect or cause to be erected on the land any dwelling other than a new dwelling with a minimum closed in floor area of no less than 140 square metres (including the garaging) of which the plans (including the site plan) and specifications have first been submitted to and approved in writing by Bayjah Developments Limited or its nominee to ensure that aesthetic standards are maintained.
PROVIDED THAT if there is a difference or dispute as to the matters to be taken into account in approving the plans (including site plan and specifications), this shall be referred to the arbitration of the President of the New Zealand Institute of Architects or his or her nominee in accordance with the Arbitration Act 1996 or any Act in substitution therefor.
2.Not to use or permit to be used in any building on the land, secondhand materials or fibrolite or similar type of product for outer walls or facings, nor to use or permit to be used any building materials other than brick, stone, concrete block, plastered textured finish or timber weatherboards for any outer walls or facings without first obtaining the written permission of the vendor or their nominee.
3.Not to use as a roofing material anything other than tiles (clay, ceramic, concrete or decramastic), pre coated pressed steel, slate, shingles or painted coloursteel without first obtaining the written approval of the vendor or their nominee.
4.Not to erect or permit to be erected on the land any flat metal or corrugated metal fences.
5.Not to erect or place or permit or cause to be erected or placed on the land any secondhand buildings or relocated building or any caravan, hut, garage or shed for any kind of permanent or temporary residential use; or
PROVIDED HOWEVER in the purchaser may use an appropriate caravan or other structure approved by the Landlord and with the appropriate local body consent for a maximum period of 6 months while a dwelling is being erected upon the property.
6.That the purchaser and its successors in title may not bring onto the property or keep any pigs or poultry including roosters provided however the purchaser may keep a maximum of 10 laying hens on the property for its own use.
7.That the purchaser and its successors in title may not use or permit the property to be used as a junk yard, a scrap metal yard or allow car bodies to be stored on the property.
8.The purchaser may not permit or allow any boarding facilities for dogs and/or cats to be established on the property and will not allow any Pit bull dogs, Ridgeback dogs or crosses to live on the property.
9.Not to permit or suffer any rubbish to accumulate on the property or permit any excessive growth of grass or weeds to grow to a height which is unsightly or creates a fire hazard on the property or adjoining road berm and during and prior to construction of any building on the property allow any building material, packaging or debris to litter the property or any adjacent property.
10.Not to permit any radio, television, telecommunication aerials or satellite dishes on the property other than standard broadcast radio or TV reception aerials attached to the dwelling house or other permitted building.
AND this covenant shall be a restrictive covenant running with the land from the date of this easement.
The registered proprietors of the servient tenement shall be bound by a fencing covenant within the meaning of Section 2 of the Fencing Act 1978 to the extent that Bayjah Developments Limited shall not at any time be liable to pay for or contribute towards the cost of construction of any fence between the servient tenement and any adjoining land of Bayjah Developments Limited.
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